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Sanchez v. Bally''s Total Fitness Corporation11/30/1998
me adequate fashion the negligence of the defendant" renders the release invalid is nothing more than her insistence that the term "negligence" or the specific incident of active or passive negligence must appear in the provision. That, however, is not the law. "While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant (Prosser & Keeton on Torts (5th ed. 1984) ยง 68, pp. 483-484), that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties." (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Here the specific activity is sufficiently described by the terms of the release and assumption of risk provision by reference to "injuries . . . arising out of or connected with the use of the fitness center." Bally's has aptly noted that: " ere the word `negligence' not read into the waiver and release clause, it would be impossible to imagine what appellant was releasing respondent from, as appellant would already be unable to hold Bally liable for injuries not involving Bally's negligence."
Whether a contract provision is clear and unambiguous is a question of law, not fact. "`Where, as here, no conflicting parole evidence is introduced concerning the interpretation of the document, "construction of the instrument is a question of law, and the appellate court will independently construe the writing.'"" (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1013.) We find that the release and assumption of risk provision is clear, explicit, and comprehensible in itself and when considered and read in whole with the entire agreement. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.) Therefore, plaintiff's cause of action is barred by the terms of the agreement.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
We concur: EPSTEIN, J. HASTINGS, J.
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